VELAYUDHAN NAIR Vs. JANAKI AND OTHERS

JUDGEMENT

(1.) THIS Second Appeal by the 1st defendant is from concurrent decrees setting aside an alienation and directing recovery of possession of property from him. The 3rd defendant is the mother of the plaintiff and defendants 4 and 5. In 1103 when the plaintiff and defendants 4 and 5 were minors, a partition deed Ext. A was executed between the 3rd defendant and her brother Narayan Krishnan, the former acting as guardian of her minor children. Under the said deed, Narayan Krishnan received a sum of money in lieu of his share of tarwad property and the property described in the plaint schedule thereafter belong to the sub -tarward of the 3rd defendant and her children. Defendants 3 and 4, the former acting as guardian of the plaintiff, executed a Nischayapatrom Ext. B dated 20 -12 -1106 whereunder the plaint property was conveyed to Narayanan Krishnan, reserving a life estate therein for the 3rd defendant. The latter and Narayanan Krishnan then jointly mortgaged the property to one Chellappan Pillai who assigned the same to the 1st defendant. Narayanan Krishnan and the 3rd defendant then sold the equity of redemption to the 2nd defendant and the latter transferred his rights to the 1st defendant. The plaintiff sought to set aside Ext. B on the ground that it was not supported by consideration or necessity binding on the sub -tarwad. The later alienations viz., the mortgage and the sale were also impeached and the plaintiff prayed for recovery of possession of all the property with mesne profits, on behalf of the sub -tarwad. The 1st defendant contested. According to him Ext. B was a valid family arrangement supported by consideration and necessity. He further contended that the plaintiff was not entitled to sue on behalf of the sub -tarwad as the same had become divided in the year 1107. The courts below decreed the suit as prayed for, holding that the Nischayapatrom and the subsequent alienations were not binding on the sub -tarwad, as the same were unsupported by consideration and tarwad necessity. The concurrent finding that the Nischayapatrom is not supported by consideration and necessity does not call for interference. The only point that arises for decision is whether the plaintiff is entitled to sue on behalf of the sub -tarwad which had become partitioned long before the suit or whether she is entitled to recover only her l/4th share. The lower appellate court decided this question against the appellant on the strength of the decision of the High Court of Travancore in Kochupennu v Rukmani Amma (1946 T. L. R. 948). Before considering the correctness of this decision it is necessary to refer to certain earlier decisions, especially as the learned Judges wrongly assumed that the point was not covered by any previous decision. Kumaran Kumar an v Krishnan Kauli (16 T. L. R. 79) is one of the earliest decisions of the High Court of Travancore holding that when a Marumakkathayam tarwad became divided, the status of division applies to properties left out by mistake at the time of partition. Their Lordships observed

(2.) IT is thus clear that in reaching this conclusion, the continuance of the tarwad after division was thus assumed. The real question is whether after division a tarwad can continue to exist for some purposes. We feel no doubt that it cannot do so in reality or by fiction. We therefore decline to follow the decision in Kochupennu v Rukmini Amma.

(3.) IT was however contended by the plaintiff -Respondent that even if the plaintiff and defendants 3 to 5 were tenants -in -common, the plaintiff was entitled to sue for recovery of possession of the whole property. Reliance was placed on the decision in Verghese Chacko v Sivasankara Pillai (1949 K. L. T. 5). The actual decision in that case was that a tenant -in -common could sue for recovery of the whole property from a lessee. Their Lordships relied on the decision of the Travancore High Court in Phillipose v Thoma (31 T. L. R. 193) where it was held that one of the tenants -in -common could sue for recovery of possession of the whole property from a trespasser. Neither of these positions would apply to the present case because the Nischayapatrom is valid at least in respect of the shares of the 3rd and 4th defendants who cannot be treated either as lessees or trespassers. By reason of the partition of the sub -tarwad the plaintiff is entitled only to 1/4th share in the property and he cannot therefore be allowed to recover anything more than that. The concurrent decrees allowing recovery of possession of the whole property is therefore unsustainable, the plaintiff being entitled to a decree only in respect of his share. In the result, the concurrent decrees are modified and the plaintiff is given a decree for recovery of possession of an undivided l/4th share in the property from the 1st defendant. We do not consider it proper to convert this into a suit for partition. The Second Appeal is allowed to the above extent and is dismissed in other respects. The parties will get proportionate costs throughout.